Thrasher v. Ballard.
| Decision Date | 22 November 1889 |
| Citation | 33 W.Va. 285 |
| Court | West Virginia Supreme Court |
| Parties | Thrasher v. Ballard.* (Green, Judge, Absent.) |
A copy of a record or paper in the clerk's office of any court in the State of Virginia, attested by the officer in whose office the same is, is admissible as evidence in this State, though it has not the seal of the court or a certificate of a judge, as required by the act of congress relating to authentication of records.
A copy of a will having annexed the following certificate: is, as regards mere form or manner of attestation, admissible.
A sentence of probate made in another State upon a will is not evidence in the courts of this State of the validity and due execution of the will as to lands situate in this state devised by it, so as to pass title to such land to the devisee.
L. J. Williams and J. H. Holt for plain tiff in error.
F. Hereford for defendants in error.
Lucy J. Thrasher brought an action of ejectment in the Circuit Court of Monroe county against Lewis Ballard and others to recover a tract of land. The case was tried by the Court in lieu of a jury, and, judgment being rendered for the defendants, the plaintiff obtained this writ of error.
Both sides claimed under George B. Moffat. George B. Moffat, by deed dated October 3, 1856, conveyed the land to Daniel Stoner, trustee, to hold according to a trust defined in a deed from Daniel Stoner to William Kossinger, dated March 12, 1845; this land so conveyed by Moffat coming from the sale of, and reinvestment of the proceeds of, the land conveyed to Nossinger. The deed defining this provided that Matilda Stoner might give the property rein conveyed, or such portion as she might see proper, husband, or their children, by will. the trial the plaintiff, to show title in her, introduced paper purporting to be the will of Matilda Stoner, devising this land to the plaintiff, with the following certificate ap pended: The defence objected to its being read, and the court permitted it to be read, subject to the objection. The objection was that it was not properly authenticated, and because it had not been recorded in Monroe comity. It is suggested that it is without the court-seal and a certificate of a judge, as required by section 19, c 130, Code 1887, which embodies the act of congress touching the authentication of records of one state for use as evidence in others. But section 5, of same chapter, as to Virginia records, without regard to date, provides that a copy of any record or paper in the clerk's office of any court of that state, attested by the officer in whose office the same is, simply signed by him, shall be received as evidence. This provision must operate as an exception to section 19, requiring less authentication than do it and the act of congress. This section does not exclude a copy authenticated as the act of congress prescribes, but does admit copies certified without the seal and certificate of the judge. It seems to be generally agreed that the mode of authentication prescribed by act of congress as to records of courts and public documents is not exclusive of any which the states may think proper to adopt. Opinion in Ex parte Povall, 3 Leigh, 816; 1 Greenl. Ev. §§ 489, 505. As to mere form of authentication, though not fully formal, it is one long used, and is good. Wynn v. Harrnan, 5 Gratt. 157.
But, looking not to mere form, was it admissible, and competent to vest legal title in the plaintiff? Was such its effect? Section five operates merely as: o mode of authentication prescribing a mode of authentication of evidence substituted for the original, and only says that such copy shall have the same effect as the original. Thus we are remitted to the original. Then, what effect has this will, and its Virginia probate in 1888? Now, the deed referred to vested Matilda Stoner with a power of appointment, to be exereised by will. When the deed disposing of the subject prescribes a form and mode of appointment, that form and mode must be ob3erved. Opinion in Ocheltree v. McCluny, 7 W. Va. 249. It must be accurately conformed to, (Perry, Trust, § 5116;) and in cases where the appointment is to be carried out by will our statute (Code 1887, § 4, c. 77) is explicit: "No appointment made by will, in the exercise of any power, shall be valid, unless the same be so executed that it would be valid for the disposition of the property to which the power applies, if it be- longed to the testator." It therefore must appear that Matilda Stoner did make such a will as would pass her own absolute real estate. By this paper the plaintiff sought to prove this. Then came the question, is this her valid will? Of this there was no evidence but this Virginia probate. That could have no force beyond Virginia. It could not operate to pass land in this state by establishing the due execution and validity of the will. 1 Minor, 942, 943; Sneed v. Ewing, 5 J. J. Marsh. 450: Bice v. Jones, 4 Call, 89; 1 Lomax, Ex'rs., c. 3, p. (341) 555; Bowen v. Johnson, 5 R. I. 112; Ives v. Align, 12 Vt. 589; Kerr v. Moon, 9 Wheat. 565. An executor of one state has no power of suit in another, without re-probate and qualification in such other state. Kerr v. Moon, supra; 1 Rob. Pr. (New) 161, 162. There the foreign probate is ineffectual. Why not here? It may be argued that the act of congress touching the authentication of records provides that such faith and credit shall be given to the public records and judicial proceedings of one state in every other state as they have in the state whence they come.
It has been held that probate orders do not fall, like judgments inter partes in ordinary suits, under this provision, but partake of the nature of in rem proceedings, binding only the property; Bowen v. Johnson, supra; while the reverse view has also been held; Balfour v. Chew, 5 Mart., N. S. 517. But grant that probate sentences do fall under the act of congress. That gives the order such force as it has in Virginia, and the force it has there as to property is local and does not affect realty in another state, which is governed by the lex loci rei sitce. In the words of Story, Const. § 1313, "the constitution did not mean to confer a new power or jurisdiction, but simply to regulate the effect of the acknowledged jurisdiction over persons and things within the territory."
It may also be argued that it is not the will, as a will, that passes title, but it is the force of the deed, which, upon the due execution of the will, shifts the estate from the trustee to the appointee. Point 7, Ocheltree v. Mc Clung, 7 W. Va. 232. This is true. Still, it must be shown that the event upon which the appointment takes effect has occurred. If by deed, that it has been made; if by will, that it has been made made as the law requires it to be made; so made under our statute, that it would be effectual to pass the trustee's own property. And this must be shown by production of the original will, with due proof of it, or original probate of it here, or re-probate by copy based on the Virginia probate, under the statute.
Our Code, c. 77, § 25, makes provision for the probate of wills made elsewhere relative to estate here by production in this state of a copy of the will and foreign probate, and provides that the same shall be admitted as a will of personal estate only, or real estate also, according to what is shown by the probate abroad. If the foreign probate were conclusive and effective without this statute, why this statute? Simply to give more convenient or additional evidence? Most of the states have similar acts. I think they were enacted because of the general principle that judicial proceedings in one state have no extraterritorial force as to estate beyond the state, which is governed by the law of the place of its situation. 1 Redf. Wills, 401, states: See Curtis v. Smith, 6 Blatchf. 537 (28 Myer's Fed. Dec. p. 577, § 99.)
In Kerr v. Moon, 9 Wheat. 565, it was held that under the statute of Ohio, which permits wills made in other states, concerning property in that state, to be proved and recorded in the court of the county where the property lies, it must appear that the requisitions of the statute have been pursued, in order to give the will the same validity and effect as if made within the state. In opinion in Lapham. v. Olney, 5 R. I. 413, it is declared, "foreign probate is no evidence of its validity;" that is, of a will. Bowen v. Johnson, Id. 112, declares second probate...
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